Summary
In City of Birmingham v. Mauzey, 214 Ala. 476, 479, 108 So. 382, 385, the observation by Mr. Justice Sayre was: "There were some inaccuracies in the statement filed, but it, nevertheless, very fully performed the office for which such statements are required, viz.
Summary of this case from King v. City of BirminghamOpinion
6 Div. 627.
April 22, 1926.
Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.
W. J. Wynn and W. K. Terry, both of Birmingham, for appellant.
The duty imposed upon a city to a pedestrian with reference to storm sewer intakes adjacent to a sidewalk is only that they be made so as not to unnecessarily endanger travelers. White, Neg. Mun. Corp. §§ 536, 543, 563; Harrigan v. Brooklyn, 16 N.Y. S. 743; 4 Dillon Mun. Corp. (5th Ed.) 2966. Demurrers to pleas of contributory negligence were erroneously sustained. Birmingham v. Edwards, 201 Ala. 251, 77 So. 841. A city is not liable for injuries to pedestrians occasioned by mere slipperiness of the sidewalk from rain. Bessemer v. Whaley, 8 Ala. App. 523, 62 So. 473. Plaintiff was guilty of contributory negligence. Heland v. Lowell, 3 Allen, 407, 81 Am. Dec. 670; Sheehan v. Boston, 171 Mass. 296, 50 N.E. 543; Herries v. Waterloo, 114 Iowa, 374, 86 N.W. 306.
Reported in full in the New York Supplement Reporter; not reported in full in 62 Hun, 619.
Stokely, Scrivner, Dominick Smith and D. G. Ewing, all of Birmingham, for appellee.
Defendant's plea 8 was defective. L. N. v. Orr, 91 Ala. 548, 8 So. 360. The affirmative charge was properly refused. Montgomery v. Stephens, 14 Ala. App. 274, 69 So. 970; Ala. Terminal Co. v. Benns, 189. Ala 590, 66 So. 589; McCleskey v. Howell Cot. Co., 147 Ala. 573, 42 So. 67. Counsel discuss other questions, but without citing additional authorities.
The statement of the case contains count 1 of the complaint. With minor variations counts 2 and 3 alleged plaintiff's (appellee's) cause of action substantially as in count 1. Defendant complains that the declaration did not adequately inform it as to the location of the drainage sewer opening into which she fell. We think that reference to the complaint will refute this ground of demurrer. Nor was the complaint demurrable on other grounds. Defendant insists that it would impose upon it a duty not exacted by law, because it avers that "said drainage sewer was without bars, grating, or cover, or others means of preventing pedestrians from falling into said opening," whereas the law requires only that such openings shall be so maintained as not to endanger pedestrians unnecessarily; but the demurrer overlooks the conclusion drawn by the pleader from the facts alleged, viz.: "That thereby said street or highway was not in a reasonably safe condition for travelers" — a conclusion the pleader might reasonably draw and the jury might approve. The demurrer was properly overruled.
The action of the court in sustaining demurrers to special pleas 5 to 9, both inclusive, was free from error. These pleas were defective on various grounds: Plea 5 would attribute negligence to plaintiff in moving without the projected lines of the sidewalk, but alleges no ordinance forbidding plaintiff to walk where she did. Plea 6 was a mere conclusion of the pleader; it alleged no facts showing that plaintiff was guilty of negligence on her part. Plea 7 sets up the ordinance requiring pedestrians, when crossing streets, to keep within the projected lines of the sidewalk, but fails to allege that plaintiff's violation thereof contributed proximately to her injury. Plea 8 is in the same plight as plea 5, and plea 9 was a shorthand rendition of plea 4 which was submitted to the jury. Indeed, it appears that all these rejected pleas, save only plea 6, which alleges no facts, were designed to cover the same ground as plea 4, under which defendant was consistently allowed to prove everything it had in the way of defense.
Of first importance in this case is the question presented by defendant's plea that, in violation of an ordinance of the city of Birmingham, plaintiff when crossing the street went outside of the projected lines of the sidewalk parallel with which she was passing across the street. The ordinance in question reads as follows:
"Sec. 110. Crossing Streets. Pedestrians shall cross the highway only at highway intersections, and in crossing any street at the intersection thereof with another street shall pass over that part of the street as is included within the line of the sidewalk projected, and not diagonally; provided that this section shall only apply within the loop area of the city of Birmingham."
Plaintiff was crossing a street at an intersection within the loop district. Evidence for the plaintiff tended to show that the street intersection where the accident happened to her was the most frequented place in the city; that on the day and hour of her misfortune an unusually large number of pedestrians were passing the point in question; that she crossed the street in substantial compliance with the ordinance, but that, when she had approached within a few feet of the sidewalk to which she was going, the crowd was so great that in order to avoid it she attempted to step from the pavement onto an iron plate at the edge of the sidewalk; that as she raised her right foot her left slipped from under her and she slipped or slid into the sewer opening immediately under the iron plate nearly up to her waist, with result that one ankle was dislocated and other lesser injuries sustained. At the point of nearest approach the opening under the plate and in the face of the curb was 15 inches from the projected inside line of the sidewalk. The accident happened about 5:30 to 6 o'clock in the evening of December 8th. The pavements were wet and slippery; the street was well lighted. Originally the opening in the sewer had been guarded by iron uprights, suspended from the iron plate, about 5 inches apart, but some of these had rusted away and were bent over into the sewer or catch-basin.
It is obvious that plaintiff would not have been hurt in the manner indicated if she had remained strictly within the projected lines of the sidewalk, but her digression was slight and made under such circumstances that, in our opinion, it should not as matter of law preclude plaintiff's recovery on the ground of contributory negligence. Plaintiff's right to recover was, under the circumstances, a question for the jury. The ordinance must be construed reasonably and with a view to the purpose for which it was adopted. Its purpose was to concentrate the movement of pedestrians across the street in order to minimize the danger of accidents to them from passing vehicles. But it will not be said that municipal authorities or the drivers of automobiles are relieved of all duty to conserve the safety of pedestrians who may step aside from the path fixed for them. If, for example, a disabled vehicle or other obstruction should block the path, we suppose a pedestrian, exercising such care as ought to be suggested by the increased chances of injury, would still have the right to cross the street, and might pass around and outside of the prescribed lines without forfeiting his right to have others take due care for his safety. And so we think it must be in the case presented by the record. The path across the street was fixed by law, but in fact there were no lines drawn across the street to apprise pedestrians of the path in which they must walk. However, had they been laid down, that would have presented only another fact to be considered by the jury in determining the question of contributory negligence. Appellant cites Sheehan v. Boston, 171 Mass. 296, 50 N.E. 543, along with two or three other cases not so nearly in point, as going to prove that the mere fact that plaintiff stepped outside the lines of the sidewalk — if projected across the street — cut off the possibility of a recovery by her; the rule being that, if plaintiff was obliged to show her own breach of the law in order to prove the case alleged, she could not recover. But we think that rule does not necessarily operate to bar recovery in this case, for reasons which have been stated, and because it cannot be said that the ordinance should be so strictly construed as to visit a species of outlawry upon a person found on foot off the sidewalk and without the projected lines thereof. A person may have lawful occasion to go upon the street for purposes other than crossing. The brief assigns other reasons why appellant was entitled to the general affirmative charge, but they need no extended discussion.
The opening into which plaintiff fell or slipped was 14 by 47 inches. Defendant municipality was not bound to construct a sewer at that place, but, having determined to do so, it was bound to exercise reasonable care both in constructing and maintaining the sewer to the end that the public on foot, as well as the public in automobiles, might use the street in safety, and whether that care was exercised in this case was a question of fact. Birmingham v. Crane, 175 Ala. 90, 56 So. 723.
Again it is said in the brief that, but for the damp and slippery condition of the pavement, plaintiff would not have fallen into the hole under the sidewalk; that the municipality cannot be held responsible for that condition of the pavement, and, ergo, cannot be liable for plaintiff's injuries. It is highly probable that the major premise of this theory is correctly assumed, but it fails to account for the coefficient proximate cause, the hole, in the matter of which the jury may well have found, and, of course, did find, that the municipal authorities were at fault.
The sixteenth assignment of error is waived — it is not argued in the brief or elsewhere.
The X-ray picture was admitted in evidence without error. It helped the jury to understand the nature and extent of the injury to plaintiff's ankle.
There was objection to the admission of the statement or proof of claim filed by plaintiff with defendant; the ground of the objection being that there was a variance between the statement and the evidence offered in support of plaintiff's complaint. We think the objection cannot be sustained on its merits. There were some inaccuracies in the statement filed, but it, nevertheless, very fully performed the office for which such statements are required, viz.: To inform the municipal authorities substantially of the manner in which the injury was received and the time and place when and where the accident occurred, the damage claimed, and the substantial nature and character of the injury received, etc., in order that such claims may be investigated and adjusted in proper cases without litigation. Technical accuracy is not required. Brannon v. Birmingham, 177 Ala. 419, 59 So. 63; McKinnon v. Birmingham, 196 Ala. 58, 71 So. 463; Birmingham v. Prickett, 207 Ala. 79, 92 So. 7.
Enough has been said to indicate our judgment of all questions argued in the briefs.
Judgment affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.